Explanatory Memorandum to COM(2024)365 - - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)365 - . |
|---|---|
| source | COM(2024)365 |
| date | 31-05-2024 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The Republic of Vanuatu is listed in Annex II to Regulation (EU) 2018/18061 among the third countries whose nationals are exempt from the requirement to be in possession of a visa when crossing the external borders of the Member States for stays of no more than 90 days in any 180-day period.
The exemption from the visa requirement for nationals of Vanuatu is applicable since 28 May 2015, when the Agreement between the European Union and the Republic of Vanuatu on the short-stay visa waiver (‘the Agreement’)2 was signed and started to apply on a provisional basis in accordance with Article 8(1) of the Agreement. The Agreement entered into force on 1 April 2017.
Since 25 May 2015, Vanuatu has been operating investor citizenship schemes allowing visa-required third-country nationals to easily obtain the nationality of a visa-free country, thus enabling them to bypass the Schengen visa procedure and gain visa-free access to the EU.
The Commission has concluded, based on concrete information and data, reports and statistics, and its contacts with the authorities of Vanuatu that the investor citizenship schemes of Vanuatu, in their current form and operation, undermine the objectives of the Union’s visa policy, which provides for a screening of nationals from visa-required third countries against the criteria set out in Article 21 of Regulation (EC) No 810/20093 and in equivalent national legislation of those Member States where Regulation (EC) No 810/2009 does not yet apply in full. The manner in which the said schemes are being implemented risks the circumvention of the Union short-stay visa procedure and the assessment of security and migratory risks it entails.
Pursuant to Article 8 i of the Agreement, the Parties can suspend it in whole or in part, in particular, for reasons of public policy or the protection of national security. On that basis, the Commission adopted, on 12 January 2022, a proposal for a Council decision4 on the partial suspension of the application of the Agreement between the European Union and the Republic of Vanuatu on the short-stay visa waiver. The decision was adopted by the Council on 3 March 20225. The suspension of the Agreement was limited to ordinary passports issued as of 25 May 2015, when the number of successful applicants under Vanuatu’s investor citizenship schemes started to increase significantly.
Whilst Council Decision (EU) 2022/366 suspended the Agreement between the European Union and the Republic of Vanuatu on the short-stay visa waiver, it was also necessary for the Commission to trigger the suspension mechanism set out in Article 8 of Regulation (EU) 2018/1806.
Therefore, in accordance with Articles 8(2)(d), 8(3) and 8(6)(a) of Regulation (EU) 2018/1806, based on the conclusion that the granting of citizenship by Vanuatu under its investor citizenship schemes constitutes an increased risk to the internal security and public policy of the Member States, the Commission adopted Implementing Regulation (EU) 2022/6936 on the temporary suspension of the visa exemption for nationals of Vanuatu holding ordinary passports issued as of 25 May 2015 for a period of nine months, applicable from 4 May 2022 to 3 February 2023.
Following the entry into force of the suspension, and in accordance with Article 8(6)(a), last sub-paragraph, of Regulation (EU) 2018/1806, the Commission launched an enhanced dialogue with Vanuatu with a view to remedying the circumstances which gave rise to the temporary suspension of the visa exemption.
During the first nine-month suspension period, the parties had only one meeting of the dialogue, on 12 May 2022. The Commission proposed to Vanuatu to appoint an interlocutor and to hold monthly technical meetings. During that period, Vanuatu did not provide any follow-up contacts or information to the Commission.
Given that the increased risk to the internal security and public policy of the Member States had not been remedied during the nine-month period laid down by Implementing Regulation (EU) 2022/693 and in accordance with Article 8(6)(b) of Regulation (EU) 2018/1806, on 1 December 2022 the Commission adopted Delegated Regulation (EU) 2023/2227 extending the temporary suspension of the visa exemption for 18 months, and expanding its scope to cover all nationals of Vanuatu.
The Delegated Regulation amended Annex II of Regulation (EU) 2018/1806 accordingly, by inserting a footnote next to the mention of Vanuatu, indicating that the exemption from the visa requirement is suspended for all nationals of Vanuatu from 4 February 2023 to 3 August 2024.
In parallel, following a proposal of the Commission8, the Council adopted a Decision on the suspension in whole of the application of the Agreement9.
During this second suspension phase, the Commission continued the dialogue with Vanuatu, with four meetings held between February 2023 and April 2024, and numerous information exchanges in writing. However, most of the concerns related to the investor citizenship schemes operated by Vanuatu that were highlighted by the Commission in Implementing Regulation (EU) 2022/693 persist to date. While Vanuatu has adopted a number of legislative changes in 2023 aimed to address those concerns, it has failed to provide satisfactory proof that these changes are being duly implemented and are sufficient to mitigate the security risks deriving from the operation of its investor citizenship schemes.
In accordance with Article 8(7) of Regulation (EU) 2018/1806, the Commission has submitted a report to the European Parliament and to the Council10, describing in detail the dialogue with Vanuatu and concluding that Vanuatu has not remedied the circumstances that led to the suspension. Consequently, pursuant to Article 8(7) of Regulation (EU) 2018/1806, the Commission considers that Regulation (EU) 2018/1806 should be amended in order to transfer the reference to Vanuatu from Annex II to Annex I, therefore reintroducing permanently the visa requirement for nationals of Vanuatu.
In accordance with Article 8(6), second sub-paragraph of Regulation (EU) 2018/1806, where the Commission has submitted such legislative proposal, the period of suspension of the exemption from the visa requirement concerning Vanuatu should be extended by six months, and the footnote should be amended accordingly by the adoption of a Commission delegated Regulation. Such extension is necessary to maintain the suspension while allowing the necessary time for the European Parliament and the Council to examine and adopt the Commission proposal11 .
• Consistency with existing policy provisions in the policy area
Regulation (EU) 2018/1806 lists the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States and those whose nationals are exempt from that requirement. Regulation (EU) 2018/1806 is applied by all Member States – with the exception of Ireland. It is also applied by Iceland, Liechtenstein, Norway and Switzerland. The Regulation is part of the EU’s common visa policy for short stays of up to 90 days in any 180-day period.
• Consistency with other Union policies
This initiative is consistent with the EU border management and security policies, as its main objective is to address security risks for the Schengen area.
In particular, the proposal aims to prevent possible abuses linked to visa-free travel from nationals of a country operating investor citizenship schemes that pose a number of risks for the Member States, in terms of public policy and security.
This proposal takes into account the external relations of the Union and its Member States with the third country concerned.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for the proposal is point (a) of Article 77(2) of the Treaty on the Functioning of the European Union (TFEU), which empowers the Union to develop measures concerning the common policy on visas and other short-stay residence permits. The proposed amending regulation will constitute a development of the Schengen acquis.
• Subsidiarity, proportionality and choice of the instrument
The necessary amendment to Regulation (EU) No 2018/1806 is to be done by means of a regulation. Member States cannot act individually to achieve the policy objective. No other (non-legislative) options to achieve the policy objective are available.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
The Commission has regularly informed and consulted the Member States in the Visa Working Party on the dialogue with Vanuatu since the entry into force of the suspension of the visa exemption. The Commission has held numerous meetings and written exchange of information with the authorities of Vanuatu in the context of the enhanced dialogue during the suspension period.
• Impact assessment
The analysis and supporting evidence for the policy choice of reintroducing the visa requirement for nationals of Vanuatu are presented in the Report to the European Parliament and the Council accompanying this proposal. As explained above, in light of the risk to the internal security and public policy of the Member States represented by Vanuatu’s citizenship investment schemes, the Commission considers that pursuant to Article 8(7) of Regulation (EU) 2018/1806, it is necessary to submit a proposal to transfer Vanuatu to the list of third countries whose nationals require a Schengen visa. Therefore, as there is no choice between alternative policy options and the proposal is not likely to lead to significant economic, environmental, or social impacts and does not entail significant spending, an impact assessment is not required.
• Fundamental rights
This proposal has no negative consequences for the protection of fundamental rights in the European Union.
4. BUDGETARY IMPLICATIONS
This proposal has no budgetary implications.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The amended Regulation will be directly applicable from the date of its entry into force and will be implemented immediately by Member States. No implementation plan is necessary.
• Detailed explanation of the specific provisions of the proposal
It is proposed to amend Regulation (EU) 2018/1806 by transferring the reference to Vanuatu from Annex II (list of third countries whose nationals are exempt from the requirement to be in possession of a visa when crossing the external borders of the Member States for stays of no more than 90 days in any 180-day period) to Annex I (list of third countries whose nationals are required to be in possession of a visa when crossing the external borders of the Member States).